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Board has reached breaking point with Berger

The Board of Commissioners voted Monday night to remove Brian Berger via the amotion process, a common law procedure that gives a private corporation the ability to remove an officer because he is unfit.

Published: Wednesday, April 10, 2013 at 12:30 a.m.

Last Modified: Tuesday, April 9, 2013 at 4:38 p.m.

The first step has been taken, but there's still a long road ahead for the removal of New Hanover County Commissioner Brian Berger.

The Board of Commissioners voted Monday night to begin the amotion process, a common law procedure that gives a private corporation the ability to remove an officer because he is unfit.

"We've reached a point where enough is enough," Chairman Woody White said in a telephone interview Tuesday. "The president, governors, legislators can all be impeached. If they behaved the way he has they would be removed from office. If anyone in any job behaved the way he did they would be fired. There is no reason Mr. Berger, as an elected official should be treated any differently."

Berger could not be reached for comment Tuesday.

Beyond Berger's resignation, there are currently only four ways to remove an elected official in North Carolina: if the member is convicted of a felony, corruption, financial or election law violations; the state legislature passes an act removing him; the attorney general brings action on behalf of the state in Superior Court; or the board files an amotion.

With all of their other options exhausted, White said the amotion was the only way to go.

"It is an antiquated process, but it is the one the (University of North Carolina-Chapel Hill) School of Government recommends," said White, who is a local attorney in addition to serving on the board.

Since most of the North Carolina cases that successfully used the amotion process to remove an elected official took place nearly a century ago, finding an expert on the subject is tough. Very little is known about amotions – most people just think the space has simply been left out between the words "a" and "motion" – and the commissioners and county staff will only have the legal interpretations given by three law reviews to go by.

The first is an article from 1980 in the Wake Forest Law Review; the second a 2009 article titled "Putting Amotion in Motion" that ran in the Campbell Law Review; and the last a UNC School of Government blog post on the topic from late 2009.

According to these reviews, past successful uses of the amotion process have relied on the following grounds for removal: offenses not related to the office but so infamous as to render the offender unfit for any public office; offenses amounting to noncriminal misconduct in office; offenses that are both criminal and constitute misconduct in office; legal incapacity; or extreme neglect of duty.

The commissioners believes recent actions and Berger's behavior over the course of his term more than fall under these grounds for removal.

"He has demonstrated that he is unfit for office repeatedly," White said. "His actions do not meet the expectations outlined in the code of ethics and there is also just an idea of common decency and common sense that he does not measure up to."

‘Fundamentally fair'

There is no written policy on how to proceed with an amotion process. However, the board expects to follow the suggested guidelines outlined in the Campbell Law Review.

The law review piece gives five steps to ensure fairness through this process: adequate notice of the scheduled proceeding and pending charges; provide meaningful opportunity to be heard and produce testimony in defense; make determination only following a full and fair hearing on the merits regarding just cause; maintain recorded minutes of removal-related meetings; and certiorari review in superior court should be limited to issues of law.

All three interpretations do stress that none of this is required as the amotion process is not a statute. It is up to the government body as to how to proceed and final interpretations of amotion authority sit with a judge or the N.C. Supreme Court.

"We'll work through it," White said. "The process is not set out, but we want to make sure that it is fundamentally fair and that Mr. Berger will receive due process of the law."

The commissioners voted to move forward with the amotion process 3-1, with only Berger voting against it. Commissioner Jonathan Barfield excused himself during the discussion with Berger because he was ill. Barfield could not be reached for comment Tuesday.

White said the board is currently working with the county attorney and with the N.C. State Bar to determine whether or not the county attorney can represent the rest of the board while bringing a case against Berger. These talks will also determine whether or not the regularly scheduled board meeting on April 22 can serve as the hearing date for the amotion process or if it can only serve as the date the board notifies Berger of an upcoming hearing.

In the case of the latter, a special called meeting will be scheduled for a later date.

<p>The first step has been taken, but there's still a long road ahead for the removal of New Hanover County Commissioner <a href="http://www.starnewsonline.com/section/topic9976"><b>Brian Berger</b></a>. </p><p>The Board of Commissioners voted Monday night to begin the amotion process, a common law procedure that gives a private corporation the ability to remove an officer because he is unfit.</p><p>"We've reached a point where enough is enough," Chairman Woody White said in a telephone interview Tuesday. "The president, governors, legislators can all be impeached. If they behaved the way he has they would be removed from office. If anyone in any job behaved the way he did they would be fired. There is no reason Mr. Berger, as an elected official should be treated any differently."</p><p>Berger could not be reached for comment Tuesday.</p><p>Beyond Berger's resignation, there are currently only four ways to remove an elected official in North Carolina: if the member is convicted of a felony, corruption, financial or election law violations; the state legislature passes an act removing him; the attorney general brings action on behalf of the state in Superior Court; or the board files an amotion.</p><p>With all of their other options exhausted, White said the amotion was the only way to go.</p><p>"It is an antiquated process, but it is the one the (University of North Carolina-Chapel Hill) School of Government recommends," said White, who is a local attorney in addition to serving on the board.</p><p>Since most of the North Carolina cases that successfully used the amotion process to remove an elected official took place nearly a century ago, finding an expert on the subject is tough. Very little is known about amotions – most people just think the space has simply been left out between the words "a" and "motion" – and the commissioners and county staff will only have the legal interpretations given by three law reviews to go by.</p><p>The first is an article from 1980 in the Wake Forest Law Review; the second a 2009 article titled "Putting Amotion in Motion" that ran in the Campbell Law Review; and the last a UNC School of Government blog post on the topic from late 2009.</p><p>According to these reviews, past successful uses of the amotion process have relied on the following grounds for removal: offenses not related to the office but so infamous as to render the offender unfit for any public office; offenses amounting to noncriminal misconduct in office; offenses that are both criminal and constitute misconduct in office; legal incapacity; or extreme neglect of duty. </p><p>The commissioners believes recent actions and Berger's behavior over the course of his term more than fall under these grounds for removal.</p><p>"He has demonstrated that he is unfit for office repeatedly," White said. "His actions do not meet the expectations outlined in the code of ethics and there is also just an idea of common decency and common sense that he does not measure up to."</p><p>'Fundamentally fair'</p><p>There is no written policy on how to proceed with an amotion process. However, the board expects to follow the suggested guidelines outlined in the Campbell Law Review.</p><p>The law review piece gives five steps to ensure fairness through this process: adequate notice of the scheduled proceeding and pending charges; provide meaningful opportunity to be heard and produce testimony in defense; make determination only following a full and fair hearing on the merits regarding just cause; maintain recorded minutes of removal-related meetings; and certiorari review in superior court should be limited to issues of law.</p><p>All three interpretations do stress that none of this is required as the amotion process is not a statute. It is up to the government body as to how to proceed and final interpretations of amotion authority sit with a judge or the N.C. Supreme Court.</p><p>"We'll work through it," White said. "The process is not set out, but we want to make sure that it is fundamentally fair and that Mr. Berger will receive due process of the law."</p><p>The commissioners voted to move forward with the amotion process 3-1, with only Berger voting against it. Commissioner Jonathan Barfield excused himself during the discussion with Berger because he was ill. Barfield could not be reached for comment Tuesday. </p><p>White said the board is currently working with the county attorney and with the N.C. State Bar to determine whether or not the county attorney can represent the rest of the board while bringing a case against Berger. These talks will also determine whether or not the regularly scheduled board meeting on April 22 can serve as the hearing date for the amotion process or if it can only serve as the date the board notifies Berger of an upcoming hearing.</p><p>In the case of the latter, a special called meeting will be scheduled for a later date.</p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @AshleyWithers</p>